High on Habeas

Hafetz [left] and Winke, Amherst habeas classmates, at Federal Hall in the New York City, the site where the Bill of Rights was ratified.

What have I taken away from this experience?” Repeating a question, Park Avenue attorney Paul Winke ’90 paused over his breakfast in a nearby restaurant, where he’d been persuaded to stop billing hours long enough to discuss his pro bono work in behalf of detainees at the U.S. base at Guantánamo, Cuba. “I’ve certainly been grateful to be part of a historic effort—maddening though it has been to have to fight our own government for basic legal protections. This hasn’t been about tilting at windmills but about actually getting people out of prison.”

The best-known of Winke’s Guantánamo cases involved six Algerians living in Bosnia-Herzegovina, including the “named” plaintiff, Lakhdar Boumediene. All were detained in 2001 on suspicion of participating in a plot to bomb a U.S. embassy and jailed by Bosnian authorities. When subsequently cleared, the six were, in Winke’s words, “effectively kidnapped” by U.S. agents and sent to Guantánamo, triggering a judicial process that consumed four years and countless unbillable hours.

Twenty minutes downtown by subway, at the tip of Manhattan Island, Winke’s Amherst classmate, Jonathan Hafetz, sat in his office at the National Security Project of the American Civil Liberties Union, describing essentially the same experience in terms of essentially the same personal satisfactions. At the ACLU, the satisfactions don’t have to be tacked onto a career in mainstream law. They come with the job. Hafetz spoke with obvious feeling about his relentless effort to defend Ali al-Marri, a student at Bradley University sequestered without trial for seven years on suspicion of being an enemy combatant. “If the detention of al-Marri had been upheld,” Hafetz said, “there would be no limit on what a president could do to lock people up. I also blame Congress, and to some extent the American people, for letting these things happen.”

That same evening, speaking at a party celebrating publication of The Guantánamo Lawyers, a book of essays he co-edited, Hafetz remarked, “In time, what happened at Gitmo will get diminished, twisted, belittled. But it really was a human rights catastrophe.” In his introduction to the book, Hafetz zeroed in on the people he believes responsible for that catastrophe: “a corrupt cabal of high-level Bush administration officials bent on destroying the Constitution in the name of misguided, dangerous, and criminal theories of executive power.”

Strong stuff and, however one feels about Hafetz’s judgments, important stuff. The incarceration of hundreds of alleged enemy combatants at Guantánamo and elsewhere (Hafetz’s client al-Marri was confined in Charleston, S.C.) has sparked a huge debate among civil rights lawyers, legal theorists and government officials, with the first group and some of the second generally assaulting the rationales the third has put forth for holding those people indefinitely without trial and, in many cases, without access to lawyers.

At the center of the controversy stands the American judicial concept of habeas corpus, which in Latin means “have the body” and which my unabridged Random House Dictionary of the English Language defines as “a writ requiring a person [accused of a crime] to be brought before a judge or court, esp. for investigation of a restraint of the person’s liberty; used as protection against illegal imprisonment.” Although a bedrock principle of U.S. constitutional law, “habeas,” as it’s known in legal circles, has a history periodically pocked by controversy. In 1862, for example, President Lincoln suspended the right in Maryland and parts of the Midwest, along with declaring martial law; his action was and has remained highly controversial. But the federal government’s detentions in the wake of 9/11 touched off the most prolonged, heated debate over habeas corpus in the nation’s history.

It is that swirling legal sea into which the two Amherst classmates have plunged, and happily so. Not only are both eager to rebuff what they regard as a reckless trampling of habeas protections, they also recognize that defending habeas is where it’s at in civil rights law nowadays. Today’s habeas cases have just about everything in terms of opposing viewpoints and claims. On one side are government and political conservatives’ claims of young Muslims bent on murderous jihad, religious extremism and the inalienable right of a sovereign state to defend itself. On the other side are the ACLU and like-minded organizations, arguing against what they see as the unconscionable abrogation of legal protections for foreigners and even U.S. citizens, clandestine lockups, limitless confinement and physical and psychological abuse of those being held. In addition, the cases have commanded the attention of federal courts at every level, as well as unusually sustained coverage from the more serious elements of the media.

To be sure, opponents of the Winke/Hafetz take on the treatment of suspected terrorists have long mounted a spirited defense. Declares Gregory G. Katsas, who oversaw and participated in many of the Justice Department’s terrorism cases during George W. Bush’s presidency: “That administration’s anti-terrorism policies have been critical in accomplishing what nobody would have thought possible on Sept. 12, 2001: preventing another major attack on the American homeland for some eight years now. That happened because our military and intelligence services took the fight to al Qaeda, because the detentions about which those advocates are complaining incapacitated a significant fraction of al Qaeda leadership and because effective interrogations exposed and thwarted many follow-up plots that otherwise would likely have killed thousands more innocent American civilians.”

Katsas complains about “an unprecedented extension of habeas corpus to the wartime detention of alien enemy combatants held outside U.S. territory,” but asserts that the Obama administration “has reaffirmed every one of our significant legal positions regarding [their] detention and trial.”

Attorneys such as Winke and Hafetz have themselves been villified by some conservatives. And former Vice President Dick Cheney’s daughter Liz, an attorney, has referred to Justice Department lawyers who formerly represented terrorism detainees as the “al Qaeda Seven,” while others with similar convictions have said that those detainees do not deserve the same level of legal representation as other defendants.

The issues inherent in habeas corpus cut across historical and geographic as well as legal boundaries. Nasser Hussain, associate professor in Amherst’s Department of Law, Jurisprudence and Social Thought, is an authority on the historical aspects, including the impact of bilateral situations inherent in virtually all of the detainee cases. Hussain’s The Jurisprudence of Emergency: Colonialism and the Rule of Law, includes a chapter on the history of habeas in the British Empire.

“I think that the original position the Bush administration was maintaining was untenable,” Hussain said in a June 2009 interview with Caroline J. Hanna, Amherst’s media relations director, for the college’s Web site. “Their policy was that [the Guantánamo detainees] are people outside of both international and domestic and laws, this category of ‘enemy combatants.’” Hussain helped write a brief for a 2004 U.S. Supreme Court case on the issue. “There has been a tradition of using habeas corpus even in territories where the question of sovereignty was somewhat muddled but where there was an effective ruling presence,” he told Hanna. “I found cases in the archives, for my book, where English judges had said, ‘No, the king can’t do that, he can’t just go to India and have complete control and none of the constitutional constraints.’… What was probably the most arcane, academic chapter of my book … had suddenly become a daily debate on the news. It was surreal.”

Another Amherst professor in the same department, Lawrence Douglas, observes that the decision in Winke’s Boumediene case was one of “the important four the Supreme Court issued to curb the executive powers the Bush administration was seeking to establish. In Boumediene, the majority said unmistakably that military commissions cannot—at least in the circumstances cited—substitute for habeas corpus.”

Winke, Hafetz and the many other lawyers defending Guantánamo detainees, Douglas believes, “have been doing absolutely critical work. They are worthy successors to the attorneys who stood up for our Constitution and laws during the civil rights movement. In so doing, these attorneys have not only been protecting individual rights but also rehabbing the damaged reputation of the United States.”

Although the former Amherst classmates support the same legal principles in the same city, Paul Winke (pronounced WINK-ee) and Jon Hafetz are only generally aware of each other’s work. Along with a few dozen other lawyers, Winke did contribute to Hafetz’s Guantánamo anthology, writing about his time spent at the U.S. prison interviewing and cheering up the detainees he and his firm represented. On the evening of Hafetz’s book party, Winke stole a couple of hours from a pressing project to attend, but he seemed to know only a few of the other people present.

Work aside, the two men are not pals. One reason why is where they live: Winke with his wife and son in suburban Montclair, N.J.; Hafetz with his wife and two kids in Brooklyn, N.Y. Winke and Hafetz come from very different backgrounds. Winke grew up near Albany, N.Y., the son of a nurse and a Ford Motor Co. accountant. Although he applied to several elite colleges besides Amherst, he did it pretty much on his own: “My parents didn’t know about these kinds of schools.” He started as a math major, “did badly,” switched to political science. He later taught Kaplan GRE courses to make ends meet while doing graduate work in poli sci at Johns Hopkins, but quit the latter “because I wasn’t on track to finish my Ph.D.”

Hafetz grew up in Manhattan and then Westchester County. His parents knew Amherst well and encouraged him to apply. He majored in history. For postgrad work, Hafetz went to Oxford and came away with a master’s, also in history. He then taught high school for three years, including one at a Louisiana Christian school. “That year,” Hafetz recalls, “was like being at the center of a culture war. I became very controversial—especially when I began teaching civil rights history and showed the movie Mississippi Burning in class.” A fourth year of teaching, this one in the comforts of Brooklyn, led to a Fulbright scholarship in Mexico. All that before turning to the law.

Both men project a casual, non-lawyerly air: Hafetz tie-less and a bit rumpled in vintage ACLU corduroy trousers; Winke, the day I saw him, dressed down in an almost sporty shirt open at the collar; neither with a suit or sport jacket anywhere in sight. (I failed to ask Winke if that was his pro bono, vs. billable hours, outfit.) Although reserved in opening conversations, each becomes voluble and earnest when fully engaged in describing his pro bono efforts, even though, in Hafetz’s case, they are a matter of everyday practice.

If Winke had a somewhat leisurely start as a civil liberties lawyer, he made up for it with his very first case out of New York University law school (where he earned a three-year full-tuition scholarship based on academic merit). When he joined Wilmer Cutler Pickering Hale and Dorr, where he still works, “they put me right onto the team defending three individuals wrongly accused of rape and murder. We presented what was, for that era, a sophisticated argument involving DNA testing. After the separate trial of one defendant brought a not-guilty verdict, we got voluntary dismissals of the charges for the other two.” He did the work with minimal supervision from higher-ups. “One of our senior attorneys called it a once-in-a-career experience.”

WilmerHale, Winke says, wants 5 percent of the firm’s total hours to involve pro bono work. “I’ve far exceeded that percentage in the seven years I’ve been here,” taking time away from his regular work in the area of securities regulation. “Yet my superiors have never blinked at that or penalized me for it in any way.”

Guantánamo—and habeas corpus—entered his life in the spring of 2005. “I was working with a partner who asked, ‘How would you like to take part in a Gitmo case?’ He said our side had lost at the federal district-court level and was preparing an appeal to the D.C. circuit.” Winke signed on, and the case, Boumediene v. Bush, became a milestone in the young lawyer’s career. (On Winke’s one-page résumé, it is the only pro bono work listed, but the listing proudly describes it as involving “historic first habeas corpus hearings.”)

The decision has polarized the legal community to an unusual degree. Largely because of it, a New York Times news story declared in June 2008, the high court “finds itself on the verge of becoming something that it has not been for many election cycles—a campaign issue.” No wonder: Justice Antonin Scalia, in a dissenting opinion, wrote that granting Guantánamo detainees access to habeas “will almost certainly cause more Americans to be killed.” And Sen. John McCain, then the surefire Republican nominee for president, quickly escalated his earlier, temperate description of the decision by calling it “one of the worst in the history of this country.”

In October 2001, Lakhdar Boumediene and his five fellow Algerians were accused of participating in a plot to bomb the U.S. embassy in Sarajevo. Each was at that point living, working and raising a family in Bosnia-Herzegovina. Even by the standards of post-9/11 terrorism and anti-terrorism, the ensuing events were bizarre and, to many observers, alarming—in that the Algerians’ release by Bosnians merely led to re-arrest by U.S. agents and open-ended detention at Guantánamo.

At the outset of Boumediene, Winke says, the federal courts had recognized the habeas corpus rights of alleged terrorists seized in the United States. (The fate of Jon Hafetz’s principal defendant, al-Marri, had not yet been decided.) But the rights—if any—of those seized abroad, including the six Algerians, were tenuous at best.

“We said, ‘If you’re going to grab somebody in a military context, no matter where that occurs, he is entitled to some sort of legal process,’” Winke says. “Nobody was arguing that our clients were officially part of any army or foreign organization; the government, however, claimed [our clients] had been giving ‘substantial support’ to such groups and were therefore subject to American military justice—and to indefinite detention, without trial, at Guantánamo.”

In this 2006 photo, a U.S. military guard passes a detainee at the U.S. Naval Base at Guantánamo Bay, Cuba.

Winke’s argument had to overcome a formidable barrier: in 2006, Congress passed, and President Bush signed, a Military Commissions Act that invested such commissions with the power to “try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses.” The act effectively placed the U.S. government’s foreign detainees at Guantánamo and elsewhere outside the protections of habeas, creating for them a real prospect of indefinite imprisonment. In addition, Winke says, the government insisted on a “closed record” in terrorism detainees’ judicial proceedings, with only prosecution evidence—unrefuted, unarguable—to be accepted. “The courts were simply to defer to the military.”

To Winke and his colleagues, all of that was unacceptable. “We had a process for POWs in Vietnam, sometimes even involving appointed counsel, and a similar one in the Persian Gulf War.” (Hafetz notes that although nearly 2,000 people were detained during or just after that conflict, the U.S. military routinely provided hearings under the Third Geneva Convention and that all but a couple of hundred were found to be innocent civilians.) Therefore, Winke says, “these six men were entitled to the full protections of habeas corpus. They at least deserved a chance to test whether their detention was legal.”

The issue was: how far does habeas corpus reach? Geographically, beyond U.S. borders? “Nationally,” to non-Americans? Added to those legal matters was a political question tailor-made for a reductive mind: even if ordinary non-American criminals apprehended abroad deserve the protection of habeas, do alleged terrorists—bent on destroying “our way of life”—deserve it?

Boumediene followed a tortuous judicial path. After a 2004 Supreme Court decision, in a different case, that detainees had a federal right to file habeas challenges, a district court ruled that the judicial system nevertheless had no remedy for Boumediene and his five fellow Algerians. Another district court reached the opposite conclusion with regard to prisoner Fawzi Khalid Abdullah Fahad Al-Odah. The Supreme Court therefore agreed to rehear both cases. In June 2008, it held 5-4 for Boumediene et al. The government, the court said, cannot suspend habeas except under conditions of rebellion or invasion. The justices split along predictable lines, with habitual “swing” voter Anthony Kennedy the deciding voice; he declared that “the political branches” of government may not “switch the Constitution on or off at will.”

Released from custody, Boumediene and a compatriot went to France, and three of the others went back to Bosnia-Herzegovina. The sixth petitioner, ruled not to be an enemy combatant, remains in custody on the grounds that he is too dangerous to release; WilmerHale is pressing for his freedom.

Winke’s experience with the case extended far beyond courtrooms and law libraries. He went to Guantánamo a half-dozen times, not only to exchange news and views with his clients but also to show his “solidarity” with them and “try to explain the American justice system. Many of the detainees were understandably highly suspicious of the system—and of the Guantánamo attorneys like me.” Winke describes these meetings as a powerful bonding experience: “We embraced when we met, talked about their families and mine. It was very rewarding for me.”

Although he, too, followed a wandering path to the practice of law, Jon Hafetz began closely studying habeas corpus at an early age. At Amherst, he wrote a student paper on habeas, and unlike the vast majority of such efforts, this one had legs: it wound up in the Yale Law Journal. (Hafetz followed the paper to the school itself, earning his J.D. at Yale in 1999.) The paper, arguing that the original purpose and meaning of habeas has been lost, was cited by the Supreme Court in ruling in favor of a defendant appealing deportation for possession of a controlled substance. That case, and Hafetz’s participation in it, became a bridge to his work in favor of post-9/11 detainees.

By that time, he had become a one-man resource on habeas. He created a Guantánamo legal archive and dug deeply into the historical uses and meaning of the Constitutional right. “I worked with a Yale law professor and a legal historian at Georgetown University. We looked at cases as far back as the 15th century, some of them in manuscript form. We wanted to know: what does the Constitution’s guarantee of habeas corpus really mean?”

Hafetz’s answers to that question anticipated those of Professor Hussain above. “Throughout British history, habeas has been viewed as an individual right, not one based on citizenship,” Hafetz says. “Also not a right bound by political sovereignty; it applied wherever the crown exercised control.”

His first important trial experience involving habeas came in Immigration and Naturalization Services v. St. Cyr. Enrico St. Cyr, a Haitian with resident alien status in the United States, was convicted on a drug charge and sentenced to deportation. Although he was eligible to have the order waived, the U.S. attorney general said federal anti-terrorism and immigration statutes prevented him from granting a waiver. St. Cyr’s lawyers filed a habeas corpus petition on the grounds that the crime occurred before those statutes took effect. Federal district and appellate courts agreed with that argument, and the case went to the Supreme Court. The legal paper Hafetz wrote while at Amherst directly addressed the habeas issues in the case and was cited by the majority when it ruled in St. Cyr’s favor in June 2001. (Not surprisingly, Hafetz’s work won the prize for best student “note” in the Yale Law Journal.)

In 2003, Hafetz joined Gibbons P.C., a New Jersey-based law firm specializing in immigration and the death penalty. Post-9/11 litigation was heating up, and Hafetz soon found himself assigned to the case of al-Marri, the Bradley student, a Qatar citizen who’d been charged with credit card fraud, lying to an FBI agent and falsifying a bank-account application while at the university. Before al-Marri even had a hearing, Justice Department lawyers presented local authorities with a one-page presidential order authorizing his re-indictment and transfer to a U.S. Navy brig in Charleston. A simple criminal proceeding had suddenly metamorphosed into an ominous allegation of being a “sleeper” agent for al Qaeda.

Al-Marri thus became one of only two people held as an enemy combatant post-9/11 who had been arrested in the United States. (The other, the far-better-known José Padilla, was a U.S. citizen found guilty of conspiring to kill people in an overseas jihad and suspected of planning to build and explode a “dirty” bomb in this country. He received a long prison sentence in 2008.)

The government’s imprisonment of al-Marri in Charleston, Hafetz says, was no accident. “The Fourth Circuit Court, which handles South Carolina, is the most conservative in the country.” Hafetz’s involvement escalated in 2005, when he took a position with New York University’s Brennan Center for Justice. “From that point on—until we forced al-Marri’s release from the brig—I litigated the case as the lead attorney.” (WilmerHale contributed a “huge” number of attorneys to the effort, but Paul Winke was not one of them.)

The issue with al-Marri, Hafetz says, is “whether he had a right to a trial or could just be detained indefinitely” without one. The Bush administration never moved to try him, and Hafetz’s voice quivers with indignation as he discusses that aspect of the case: “If the government had evidence of those things, why didn’t it try the man?” He has a ready answer: “Because of ideology. This came at the apex of Bush’s claims of possessing limitless executive power as the nation’s commander in chief. He and his advisers figured they would push the constitutional limits as far as they could.”

The limits, Hafetz asserts, encompassed physical and mental abuse. “Al-Marri was subjected to a brutal interrogation regimen that included being chained in a fetal position to the floor of a freezing cell and forced to stand in painful positions for hours at a time. Guantánamo had come to the United States.” In addition, “al-Marri remained totally isolated. Letters to and from his wife and children took up a year and more to arrive due to the government’s purported security review. The one book he was allowed—a copy of the Quran—was frequently taken away or defiled as an interrogation tool.”

In August 2005, Hafetz and his team added to its pending habeas corpus petition a federal-court lawsuit demanding improvement in the conditions of al-Marri’s confinement; gradually and incompletely, Hafetz says, improvements followed. Two more suits later, the Fourth Circuit Court of Appeals ruled, 5-4, that the military could continue to hold the prisoner if the allegations against him were true—but also that he was en­titled to additional due process in challenging them. Ha­fetz and colleagues appealed to the Supreme Court, arguing that if imprisonment continued, al-Marri deserved a criminal trial. They filed their opening brief in January 2009, one day after Barack Obama’s inauguration. When the new administration chose not to defend the “continue to hold” part of the Fourth Circuit’s decision, al-Marri was transferred to civilian custody to stand trial. In an April 2009 plea agreement, al-Marri—who’d admitted earlier that year to having attended terrorist training camps and to meeting with al Qaeda’s Khalid Sheikh Mohammed—pleaded guilty to acting as a sleeper agent for al Qaeda. In October, al-Marri was sentenced to more than eight years in prison. According to the plea agreement, Mohammed had instructed al-Marri “to enter the United States no later than Sept. 10, 2001.” Hafetz says the outcome was fair and shows “the capacity of federal courts to handle terrorism cases.”

“Readers of this story,” Hafetz wrote in his book The Guantánamo Lawyers, “may say that Ali [al-Marri]’s actions brought these hardships on himself and his family. But how we treat prisoners is about us, not them.” For Hafetz, the al-Marri interlude was as exhilarating as it was frustrating. “The stakes were very high. The case raised the most basic questions about the Constitution, Bill of Rights, separation of powers, right to trial. Could all of those simply be suspended when dealing with a so-called enemy combatant?”

A bird pauses along the barbed wire surrounding Guantánamo's Camp Delta in March 2010.

Like Winke, with his six Algerian clients at Guantánamo, Hafetz gained great satisfaction by getting to know al-Marri and his family. “While Ali’s petition for Supreme Court review was pending, our Charleston attorney and I visited his family, which had moved to Saudi Arabia. Seeing them at home put his detention in a new light. They became not disembodied voices checking in on the status of his case, but living, flesh-and-blood human beings struggling to cope with the prolonged, indefinite absence of a loved one. One of Ali’s brothers told us that he did not believe Ali was still alive until he saw us.”

By late last fall, Paul Winke was showing signs of Guantánamo fatigue. “I’d like to work on a different type of pro bono case now,” he said. “Something more mundane. Our firm has partnered with a Bronx public school to help students and their parents with issues like immigration. There seem to be a lot of small but rewarding cases in that area of the law.” He is, however, still part of the effort to free the last of the six Algerians.

As a lawyer with the National Security Project of the ACLU, Jon Hafetz cannot switch gears so easily. Detention cases, after all, keep piling up. When I spoke with him, Hafetz was knee-deep in a new one involving Amir Meshal, an American citizen. He had been jailed in Kenya, grilled by U.S. agents and “rendered” to Somalia and then Ethiopia, where he was imprisoned in secret for three and a half months, all without access to a legal proceeding. Hafetz was also lending a hand with Guantánamo cases, including one involving an Afghan teenager who’d been arrested in 2001 for attacking an American tank, and he was serving as co-counsel for a Mauritanian at Guantánamo.

Hafetz expressed grave disappointment over the Obama administration’s record on detention. “By 2008, the case against the teenager was clearly dead,” he asserted, “but the incoming administration continued to hold people like this one. So we had to restart a habeas proceeding in the boy’s behalf.”

With both terrorism in general and Guantánamo in particular far from resolved, it seems certain that Winke and Hafetz will continue to metaphorically join hands across some 80 blocks of Manhattan concrete. As Professor Douglas notes, “The Obama administration has not closed the door on the possibility of continuing to use military commissions down the road. And it looks as though dealing with the rest of the Guantánamo detainees will take a long time.” Considering what’s at stake, many observers would hope that these diligent legal warriors, Amherst’s habeas classmates, hang in there for as long as it takes.

Roger M. Williams ’56 is a longtime magazine journalist who lives in Washington, D.C. His last article for Amherst magazine was the Winter 2010 cover story on Darius Lakdawalla ’95.